He's Living Proof That Murder Juries Make Mistakes -- Ex-Inmate, Pulled Off Texas' Death Row After Two Trials And Appeal, Reflects On Life

HOUSTON - On death row, it was Clarence Brandley's habit to rise at 4 each morning. This was his prayer time, when Brandley could almost pretend he was alone, that there were not several hundred other men around him who also were awaiting a state-ordered death.

For nearly 10 years, Brandley prayed that "somebody, somewhere, sometime would please do the right thing, would see that I was innocent," that he, a black janitor, had not raped and killed a white high-school girl.

Twice, he came so close to death - once, within two weeks, another time within five days - that he wrote a will, packed his books, moved to the execution cell and began his final goodbyes.

Today, when politicians are calling for a speedier execution process, when the families of victims are organizing to demand that judgment be swift, Clarence Brandley stands as a symbol that it is not inconceivable a man could be put to death for a crime he did not commit.

Released from Texas' death row in January 1990, Brandley, now 42, is one of a few condemned men to be freed.

Now pastor of a small church here called God's House and a determined fighter against the death penalty, Brandley does not like to dwell on the dark years: the pain of his mother aging before his eyes, of watching his five children grow up from behind the wire-mesh cage of the death-row visiting room.

NO APOLOGIES FROM TEXAS

But he is still waiting, he said, for an apology from the state of Texas.

"The sad part about it is, after all I've been through, nobody to this day has come to me and said, `We're sorry for what happened to you,' " he said. "No money, no amount of money, could pay for what they took from me, which was the most important part of my life. I was still young then. I was 28."

In America today - and especially in Texas, national leader in executions since their resumption in 1982 - there is little sympathy for men and women convicted of capital crimes.

On Jan. 4, Jesse DeWayne Jacobs, 44, a lifelong criminal, was put to death for a murder prosecutors conceded he personally might not have committed, although they insisted he helped plan it. The Jacobs execution drew a harsh denunciation from the Vatican.

In his second day as governor of Texas, George W. Bush, a Republican, joined state Attorney General Dan Morales, a Democrat, in backing a proposal that would consolidate appeals and set time limits for filing them. An inmate in Texas is incarcerated an average of eight years before execution.

Jim McCloskey is head of Centurion Ministries Inc., a Princeton, N.J., agency that has in 15 years succeeded in freeing 15 inmates, but only one of them, Brandley, had been sentenced to death.

"There are a lot of common characteristics that combine to create false convictions," McCloskey said. "Prosecutorial and police (misconduct), lazy investigations, poor defense lawyering. These people get caught between a rock and a hard place, and they get swept away anonymously."

Bob Stearns of Round Rock, Texas, the head of a victims'-rights coalition, has another perspective. His son, Tom, was killed in a 1974 kidnapping and robbery. Stearns said he suffered greatly until 1991, when the killer was executed.

"The most important thing I felt," he recalled, "is now he's not going to hurt anyone else."

The justice system might not be perfect, Stearns conceded, and a reconsideration of the death penalty might be wise. But he said he also believes death penalty foes are too quick to talk about "innocence."

"It must be absolutely awful for the family (of the victim)," he said about the Brandley case, "because the murderer of their daughter has gone scot-free, whether it was Brandley or not."

In 1980, on the late summer day when 16-year-old Cheryl Ferguson was raped and strangled during a volleyball tournament at Conroe High School, Brandley was the janitorial supervisor, the only African American among four whites. Although he willingly gave police samples of his hair and clothing fibers and passed a polygraph test, he was charged six days later, based largely on the fact that the other janitors gave each other alibis.

Mike DeGeurin, a high-powered Houston lawyer who took up Brandley's case in 1983, said, "They began what I called a blind focus on Clarence Brandley, and any circumstance that was consistent with the possibility that he had done it was written in stone, and any evidence inconsistent with that was destroyed or discounted."

Brandley's first trial ended with the jury 11-1 in favor of conviction. A second trial, urged by then-Montgomery County District Attorney James Keeshan, ended with Brandley's conviction and sentence of death.

In 1989, after a wave of attention that included broadcasts on "60 Minutes" and "The 700 Club," the Texas Court of Criminal Appeals reversed the decision by a 6-3 vote, ordering a new trial that officials did not pursue. The appellate judges relied largely on a 1987 evidentiary hearing in which presiding Judge Perry Pickett concluded that two other former janitors were the likely killers and that officials railroaded Brandley out of racist motives.

Every time an inmate is about to be put to death in Texas, Brandley joins protests. "I understand that people hurt when they think about their loved ones being murdered," he said, "but . . . to take another life, that just compounds everything."

HARD TO GET A JOB

Married for a second time to a volunteer who worked for his release, he has struggled to get a weekday job, to reassemble his life. His small congregation is unable to pay a regular salary.

"Anyone in this country in their right mind knows that somebody who goes into a penal institution, when they come out, they've got the mark of Cain on them," he said. "It doesn't matter whether they're innocent or guilty, especially someone who's been on death row."

Still, Brandley said, he has so many blessings: a family that never doubted him, friends who came out of nowhere and his freedom.

"I was self-centered, I was impatient, sometimes you're moving so fast you can't see life the way it really is," he said. "People ask me now if time has a different meaning to me, and I say, `Yeah, and life has a different meaning, too.' "